Cite as U.S. v. Homa, 608 F.2d 407 (10th Cir. 1979)
UNITED STATES of America, Plaintiff-Appellee,
v.
Adam George HOMA, Jr., Defendant-Appellant.
No. 78-1220.
United States Court of Appeals, Tenth Circuit.
Argued May 15, 1979.
Decided Oct. 15, 1979.
Rehearing Denied Nov. 23, 1979.
C. Scott Crabtree, Asst. U. S. Atty., Denver, Colo. (Joseph F.
Dolan, U. S. Atty., Denver, Colo., on brief), for plaintiff-appel-
lee.
Marshall A. Fogel, Denver, Colo. (William L. Keating and
Fogel, Keating & Wagner, Denver, Colo., on brief), for defendant-
appellant.
Before SETH, Chief Judge, and McWILLIAMS and BARRETT, Circuit
Judges.
McWILLIAMS, Circuit Judge.
Adam George Homa, Jr. was charged in a three-count indictment
with the unlawful possession of thirty-seven grenades which were
not registered to him in the National Firearms Registration and
Transfer Record, in violation of 26 U.S.C. section 5861(d).
Specific-ally, Homa was charged in count 1 of the indictment with
the unlawful possession of seven AN-M14 TH incendiary hand gre-
nades; in count 2 with the unlawful possession of eighteen AN-M14
TH3 incendiary hand grenades; and in count 3 with the unlawful
possession of twelve WP/MS4 hand and rifle grenades.
Homa waived trial by jury, and stipulated that he knowingly
possessed the thirty-seven grenades described in the indictment,
and stipulated further that none of the grenades was registered in
the National Firearms Registration and Transfer Record. The only
issue remaining was whether the grenades in question constituted a
"firearm" as that term is defined in 26 U.S.C. section 5845. The
trial court, at the conclusion of the Government's case, granted
Homa's motion for judgment of acquittal on counts 1 and 2 of the
indictment. However, the trial court adjudged Homa guilty on count
3 of the indictment, and it is from that judgment that Homa
prosecutes the present appeal. The trial court's findings,
conclusions and order appear as United States v. Homa, 441 F.Supp.
330 (D.Colo.1977).
26 U.S.C. section 5861(d) provides that it is unlawful for any
person to possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record. 26 U.S.C.
section 5871 sets forth the penalty for such unlawful possession.
26 U.S.C. section 5845 is the definitions section of the statute.
One of the definitions of the term "firearm" is the term
"destructive device." 26 U.S.C. section 5845(a). The term "de-
structive device" is itself defined as including any explosive or
incendiary grenade. 28 U.S.C. section 5845(f). However, that same
sub-section further provides that the term "destructive device"
shall not include any device "which is neither designed nor rede-
signed for use as a weapon."
Under the foregoing statutes, then, it is unlawful to possess
an unregistered "firearm." A "firearm," by statute, means, inter
alia, any "destructive device." A "destructive device," in turn,
means any "explosive, incendiary . . . grenade." It is undisputed
that the WP/M34 (white phosphorous) hand and rifle grenade with
which we are here concerned is an explosive and incendiary grenade,
and hence under the statute is a destructive device and therefore
a firearm within the statutory definition of that term.
However, as above noted, the section of the statute defining
the term "destructive device" contains several exceptions, one of
which is that a device "which is neither designed nor redesigned
for use as a weapon" is not a destructive device. In this latter
regard the trial judge not only found that the WP/M34 grenade was
an explosive and incendiary grenade, as that phrase is used in the
statute, but he also found that this particular white phosphorous
grenade was in fact designed for use as a weapon, and hence did not
come within the exception referred to above. The main issue on
appeal is whether the trial judge's finding that the WP/M34 grenade
was designed for use as a weapon is supported by the record, or on
the contrary is clearly erroneous. Our perusal of the record
indicates that such finding is not clearly erroneous and is sup-
ported by the record.
It is defendant's theory that the WP/M34 hand and rifle
grenade is not designed for use as a weapon, and, on the contrary,
is designed to be used for smoke signaling and screening purposes.
Admittedly, some evidence was introduced to support such theory of
the case. However, the Government called two witnesses in its
case-in-chief, namely witnesses Norton and Gleason, who testified
that the primary use of the WP/M34 grenade was to inflict
casualties. Based on the testimony of Norton and Gleason the trial
judge found that the WP/M34 grenade was capable of producing human
injuries, not by fragmentation, but by the dispersion of 5000'
Fahrenheit white phosphorous particles which burn into human flesh,
inflicting extremely painful burns. Without further belaboring the
matter, the record supports the trial court's conclusion that the
WP/M34 grenade did not come within the statutory exception that a
destructive device does not include a device not designed for use
as a weapon.
Homa also attacks the constitutionality of the statute under
which he was convicted, contending that it is vague, violates the
due process and ex post facto provisions of the Constitution, and
the like. In our view, Homa's constitutional argument is
unavailing. We simply do not perceive the constitutional
infirmities about which Homa complains. For illustrative cases in
accord with our conclusion, see United States v. Freed, 401 U.S.
601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v.
Markley, 567 F.2d 523 (1st Cir. 1977), cert. denied, 435 U.S. 951,
98 S.Ct. 1578, 55 L.Ed.2d 801 (1978); and United States v. Ross,
458 P.2d 1144 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167,
34 L.Ed.2d 118 (1972).
The Government requests an advisory opinion, or at the least
a suggestion from us, on the propriety of the trial court's ruling
that the Government, as a part of its case-in-chief, must negate
the statutory exception referred to above. This particular matter
is not technically before us. It has not been fully briefed. For
these reasons, as well as others, we decline to thus opine.
Judgment affirmed.